The Curious Case of Free Exercise

On June 1, 1925, the Supreme Court issued its opinion in Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary . The decision responded to two appeals brought by Walter Pierce, the governor of Oregon, about the Oregon Compulsory Education Act of 1922, a voter-passed initiative requiring parents to send their children, from age eight to sixteen, to public school, imposing fines and prison terms for noncompliance.

The sisters were an order of Catholic nuns who ran several boarding schools in Oregon, including St. Mary’s Academy and St. Francis School in downtown Portland. Fearing that the new Oregon law would deprive its schools of revenue and Catholic parents of the ability to obtain religious training for their children, the sisters challenged the act in district court, arguing before a special three-judge panel that the law violated the Contracts Clause and the Due Process Clause of the Fourteenth Amendment.

Consolidating the case with a challenge to the act brought by the Hill Military Academy, a private nonreligiously affiliated school, the three-judge district court unanimously enjoined the Oregon statute on the grounds that it violated the Fourteenth Amendment. The Supreme Court affirmed, holding that the act violated the liberty of parents and guardians to direct the upbringing and education of children under their ­control.

It is popular to see the Pierce decision as a victory for religious liberty, and many academics encourage this view. Stephen Carter of Yale Law School, for example, writes that what Pierce ultimately represents is the judgment that in order to take religious freedom seriously, we must take the ability of parents to raise their children in their religion seriously.

The Society of Sisters made an explicit argument for religious freedom in its bill of complaint, stating that said pretended law attempts to control the free exercise and enjoyment of religious opinions and to interfere with the rights of conscience. But, interestingly, the society did not explicitly invoke the federal Free Exercise Clause, for that clause would not be incorporated against the states until 1940. The society instead claimed that the Oregon Compulsory Education Act deprived the religious order of liberty without due process of law as applied to the states under the Fourteenth Amendment. This argument turned on the freedom of parents to send their children to private schools, which would offer religious training as well as general education.

And, in fact, the district court enjoined the act based on the schools’ rights to economic liberty and substantive due process. Citing Lochner v. New York , Murphy v. California , and Meyer v. Nebraska , District Judge Wolverton wrote for the three-judge district court that the right of the parents to engage them to instruct their children, we think, is within the liberty of the Fourteenth Amendment. Although the district court styled this right as part of the liberty component, its decision was grounded essentially in the schools’ property rights to patronage. Despite the strong interest in religious education at stake, the court did not discuss religious liberty at all.

The state defendants appealed directly to the Supreme Court. Governor Pierce emphasized in his Supreme Court brief that after arguing the case mainly on the question of the deprivation of liberty without due process of law . . . [the judges] decide[d] the case solely on the question of the deprivation of property without due process of law.

Rather than defend the precise reasoning of the district court, however, the Society of Sisters responded that both a property right and a liberty interest were at stake. The society carefully pointed out that there were strong religious interests at stake but that it expected the Court to sit in impartial judgment . . . upon all faiths and creeds. I mentioned that the society did not ask the Court to rule on the Free Exercise Clause, which had not yet been incorporated against the states. What is fascinating is that it was Oregon’s attorney general, Isaac Van Winkle, in his separate appellate brief, who expressly raised the possibility that the Supreme Court might incorporate the clause to support the Society of Sisters’ claims.

Vehemently arguing that the federal Free Exercise Clause did not protect against state laws indirectly limiting religious liberty, he declared: The books are full of cases in which the contention has been advanced that the religious convictions of a party have required him to break the law, and . . . that the laws in question are [therefore] unconstitutional. The courts have everywhere refused to uphold this contention. He pointed to the Court’s decision in Reynolds v. United States , which ruled that Mormon believers had no First Amendment right to constitutional exemption from antipolygamy laws. The Reynolds Court had explained: To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. Attorney General Van Winkle argued that Reynolds and other precedents required the Supreme Court to uphold Oregon’s law, which the state viewed as a legitimate requirement that all immigrants admitted to all the advantages and opportunities of life in the United States . . . be taught by the state the English language, and the character of American institutions and ­government.

The Society of Sisters thereupon seized the opportunity in its oral argument before the Supreme Court to make a not-so-subtle claim that the Oregon law was motivated by anti-Catholic animus. Pointing out that the question of religious liberty [was] thrust into the case for the first time by the briefs filed on behalf of the Attorney General and the Governor of the State, the society essentially argued that the state’s briefs constituted an admission regarding the purpose of the law and revealed that the underlying motive and the immediate intent and purpose of this measure were antireligious and to prevent religious instruction to children. The law was worse than any atheistic or sovietic measure ever adopted in Russia and sought to destroy the right to religious liberty and freedom of education in the name, in the cant, on the pretence of Americanization.

This claim was not surprising in light of public perceptions of the law. Reports in the local Oregonian newspaper commented that accusations that the law was backed by the Ku Klux Klan and was aimed at the Roman Catholic Church have been heard from every side since the statute was put on Oregon’s books. And evidence demonstrates that the most active supporters of the ballot initiative indeed were members of the KKK, who placed a similar compulsory-education measure on the ballot in Washington State in 1924. The anti-Catholic innuendos also came through in the governor’s and attorney general’s briefs, which were laced with complaints about the lack of proper immigrant assimilation, at a time when many immigrants were Catholic.

Yet the Supreme Court declined to rule on ­religious-liberty grounds. Not only did the Court fail to read the Free Exercise Clause as offering protection against state laws, it also did not specify that the liberty interest of the Fourteenth Amendment was a religious one. Instead, the Court struck down the law on the grounds of the personal liberty of parents and guardians to direct the upbringing and education of children under their control.

Thus, the Court shifted away from the economic basis of the district court’s decision and did not even reference the religious-liberty arguments presented by both parties in the case, choosing instead to articulate a form of parental liberty unconnected to economic or religious interests. The holding meant victory to many more claimants than those at bar, for it heralded a ­substantive-due-process legacy that continues to unfold”with direct and indirect consequences for ­religious freedom.

In fact, in the decades to come, this substantive-due-process reasoning would spawn consequences that undermined many of the traditional values held by adherents of religion. While the immediate result of Pierce was to preserve the rights of parents to send their children to private religious schools, its decision soon was cited in support of the far less traditional rights of contraception, abortion, and sodomy. These three rights would be deeply confounding not only to the order of sisters who brought the case but also to many others who hold similar values and care about religious freedom.

In Griswold v. Connecticut , for instance, the Court articulated an expansive right to privacy based on the Fourteenth Amendment’s due-process clause and the emanations and penumbras of the Bill of Rights. It expressly invoked Pierce for precedential support, reading the case to stand for religious liberty under the First Amendment, as well as for due-process rights under the Fourteenth. This point became all the more evident in Roe v. Wade , when the Court widened the reasoning in Pierce to include a right to abortion. In discussing what it called the roots of this guarantee of personal privacy, the Court noted that Pierce had established the right in the realm of child rearing and education. When the Court reaffirmed Roe fifteen years later in Planned Parenthood v. Casey , it invoked the caselaw supporting substantive due process and cited Pierce as one of the first decisions demonstrating an aspect of liberty [to be] protected against state interference by the substantive component of the Due Process Clause.

In Lawrence v. Texas , the Court struck down a state ban on sodomy, concluding that the ban conflicted with the Court’s broad statements of the substantive reach of liberty under the Due Process Clause in ­earlier cases, including Pierce v. Society of Sisters . Again, Pierce provided the Court with crucial support for a substantive due-process decision that left many advocates of traditional religious values much perplexed.

By providing an extratextual ground for constitutional freedom in the context of private religious education, Pierce profoundly affected the method of the Court and the trajectory of the law. That seminal case has paved the way for new interpretations of the personal liberty guaranteed by the Fourteenth Amendment and the particular rights accorded to members of the human family. These changes have affected a realm in which religion has long played a predominant role in inculcating values and practices. And, in time, these legal changes appear to have taken on a moral stature of their own. Persons adhering to traditional faith-based teachings have good reason to be less sanguine about that 1925 Oregon victory today.

In the decades following Pierce , the Court made jurisprudential changes that would alter the way it approached future religious liberty claims. In the 1940 decision Cantwell v. Connecticut , the Court, perhaps inevitably, incorporated the Free Exercise Clause against the states. In the 1963 decision Sherbert v. Verner , the Court articulated the now familiar test that barred states from infringing on free exercise in the absence of a compelling state interest. In Sherbert , the state had refused to provide unemployment compensation to a Seventh Day Adventist who had been fired for refusing to work on a Saturday, the Sabbath day of her denomination. The Court held that the state was required to provide an exemption to the rule in order to avoid forcing a religious adherent to abandon his religious convictions in order to retain his livelihood. To deny an exemption would be in effect to penalize the exercise of religious liberty, the Court concluded. The Sherbert decision became the core basis for claims of religious exemption from neutral and generally applicable laws.

But, by 1990, another Oregon case would once again determine the scope of religious liberty under the Free Exercise Clause, and in a most unanticipated way. In Unemployment Division v. Smith , two religious claimants sued the state for denial of unemployment benefits. Alfred Smith and Galen Black had ingested peyote for sacramental purposes at a ceremony of the Native American Church, and as a result had been fired from their jobs at a private drug-rehabilitation organization. Although the two men were not criminally prosecuted for their drug use, Oregon denied them unemployment benefits because they had been fired for work-related misconduct. Citing Sherbert , Smith and Black argued that the Free Exercise Clause required an exemption from the general rule. They argued that the state’s interest in preserving the financial integrity of the [unemployment] compensation fund did not constitute a compelling reason to infringe on free exercise. They asserted that the relevant consideration could not be the state’s interest in enforcing its criminal laws, because they had not been ­prosecuted.

While successful in the Supreme Court of Oregon, Smith and Black failed to persuade the Supreme Court of the United States. In a 5-4 opinion written by Justice Antonin Scalia, the Court rejected Smith and Black’s free-exercise claims. Although Scalia conceded that no case of ours has involved the point, he stated it would doubtless be unconstitutional for the government to ban acts or abstentions only when they are engaged in for religious reasons. On the other hand, Scalia found the clause ambiguous as to whether prohibiting the free exercise [of religion] includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). Without any reference to the history of the clause, Justice Scalia wrote that it is a permissible reading of the text . . . to say that if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect . . . the First Amendment has not been offended.

Characteristically, Scalia went on to ensure that the reading was not only permissible but also correct. Uncharacteristically, he looked solely to precedent”without considering the original meaning and history of the clause”to make this determination. The Smith decision invoked Reynolds v. United States as the first occasion the Court had to assert the rule that conscientious scruples do not relieve the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.

That was precisely the argument made, and the case cited, by the attorney general of Oregon in Pierce , when he argued that religious liberty did not justify overturning the Compulsory Education Act. The Court had declined to discuss the matter in its Pierce opinion, but it met the argument head-on in Smith. Quoting Reynolds , Justice Scalia reiterated that laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices . . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the ­professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Justice Scalia made clear that the argument for nonexemption”ignored by the Court in Pierce ”was dispositive in Smith. He stated: There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls.

But the application of Reynolds was less likely in 1990 than it would have been in 1925, due to the interposition of Sherbert ‘s compelling-interest test. Recognizing that Sherbert could be read to require religious exemptions based on free exercise, Scalia meticulously distinguished the case. Although acknowledging that Sherbert addressed the denial of unemployment benefits, he concluded that the case was different in crucial ways. Most important, Smith and Black had violated a criminal law, whereas the conduct at issue in Sherbert was not prohibited by law. And Scalia pointed out that Sherbert had only limited significance for religious liberty even outside the realm of unemployment benefits, because although we have sometimes purported to apply the Sherbert test in contexts other than [the denial of unemployment benefits], we have always found the test satisfied.

Scalia’s decision not to address the history of the Free Exercise Clause or its original meaning has been assailed by scholars such as Judge Michael McConnell of the Tenth Circuit who believe that the clause envisioned legal exemptions in cases where religious liberty could not be reconciled with civil laws. Even though other scholars such as Michael Malbin and Ellis West, whose arguments were later built upon by Philip Hamburger of Columbia Law School, appear to offer different, and perhaps more persuasive, arguments to the contrary, Scalia engaged none of them.

I suggest that the Smith opinion’s failure to enlist historical analysis to support its decision weakens it considerably. Attention to history and original meaning might at least have placated those who despaired over the dim prospects it left for claims of religious freedom. Some critics would view the decision as an anomaly for a justice who was known to have decried other established precedents”such as Roe v. Wade ”in favor of a more careful reading of the constitutional text. Many have wondered why the conservative justice, normally so attentive to tradition and original meaning, would write a decision cutting back on religious freedom.

The answer, and a reasonable one at that, appears to lie in Justice Scalia’s conviction that the courts have limited competence and must remain above the religious fray. In addition to citing precedent, Scalia’s Smith opinion presents a pragmatic and structural argument for a narrow reading of the Free Exercise Clause. He argues that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim, because evaluating such matters in objective terms would prove utterly unworkable. Requiring religious exemptions in some cases but not others would authorize judges to make impermissible value judgments and would raise the prospect of constitutionally required religious exemptions from civil obligations of almost every ­conceivable kind. Anarchy and arbitrariness, in short.

This was neither the first nor the last time Justice Scalia would argue that such matters could not be determined by the courts in a principled manner. Ten years after writing Smith , he wrote in a case involving the parental right originally articulated in Pierce. In that case, Troxel v. Granville , the majority rejected a visitation-rights claim made by two grandparents. Citing Pierce , the Court stated that the liberty of parents and guardians’ includes the right to direct the upbringing and education of children under their control.’ The mother, therefore, could deny the grandparents access to her child. Scalia, in a powerful dissent, assailed the substantive-due-process reasoning of the majority and argued that the theory of unenumerated parental rights . . . has small claim to stare decisis protection .  But he conceded his own belief that a right of parents to direct the upbringing of their children is among the unalienable Rights’ with which the Declaration of Independence proclaims all men . . . are endowed by their Creator’ and suggested that this right was among the other rights retained by the people’ which the Ninth Amendment says the Constitution’s enumeration of rights shall not be construed to deny or ­disparage.’

Of utmost importance, however, is that Scalia finds the competence to define such a right to rest in the ­legislative and not the judicial branch. While it would be entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with ­parents’ authority over the rearing of their children, he had no power as a judge to deny legal effect to laws that infringe on what is that unenumerated right.

Scalia’s Troxel dissent may give context to his approach in Smith . If Smith is viewed as a part of Scalia’s larger efforts to rein in what he views as the lawlessness of substantive due process (particularly as defined in the abortion context), his Smith decision may appear more palatable to advocates of traditional religious values. This argument suggests that the Smith decision, like his Troxel dissent, can be read as a consistent approach to the Constitution after all.

But, in a fascinating twist, the Smith decision appears to place increased emphasis on the role of substantive due process in vindicating religious freedom. The Smith decision makes clear that claimants will not win a free-exercise exemption from a neutral and generally applicable law unless they can show an impermissible legislative intent to discriminate against religion or otherwise invoke substantive due process. The Smith opinion acknowledges in a remarkable way the doctrinal stature of substantive due process and seems even to increase its importance for religious claims by stating: The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press or the right of parents, acknowledged in Pierce v. Society of Sisters , to direct the education of their children.

In other words, Smith makes clear that only substantive due process could support religious exemptions from the law that state legislatures did not choose to provide. This ruling leaves the Cantwell door open but means that few religious claims for exemption can cross its threshold. And if the Roberts Court follows the admonitions of its conservative justices and continues its slow retreat from substantive due process, religious practitioners may have even narrower grounds on which to base their claims.

So where does that leave us? I suggest that as a result of its narrow reading of the Free Exercise Clause, Smith ensures, for better or worse, that religious liberty will depend largely on legislative action and not judicial protection. Analysis of demographic trends adds interest to the jurisprudential shift, for the religious views of voting citizens, and their connections to established churches, have changed considerably since the time of the founding and even more so since Pierce . In 1925, religious liberty was attacked by a law passed on the initiative of a sectarian, anti-Catholic majority. Today a growing percentage of Americans associate with no organized religion at all.

I discern several concerns. First, restrictive laws may be passed with the purpose of inhibiting religion. Fortunately, the Supreme Court has made clear that even after Smith the Free Exercise Clause protects against governmental hostility which is masked, as well as overt, and official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial ­neutrality.

Second, and perhaps more troubling, restrictive laws may be enacted”or simply enforced”out of sheer insensitivity to religion. The latter may be a special concern in a time of increasing secularism and preoccupation with self-centered and temporal pursuits.

Third, even if the legislatures are willing to pass laws to protect religious practices, there is a significant risk that such statutes may be ruled unconstitutional by the courts. Advocates of religious freedom may be caught between a rock and a hard place, as both courts and legislatures lose the ability to grant them shelter.

Restrictions on faith-based activities will affect not only members of the Catholic Church, as in Pierce , or the Native American Church, as in Smith. A look at current free-exercise conundrums shows that practices of diverse faiths may be endangered. Will Muslims be forced to strip their heads of traditional garb required by their faith? France has required as much, and, while it has far outpaced even Oregon in its secularization, we may not be that far behind.

But we need not look abroad to see how law has already limited the practices of various religious persons and organizations. Recently, several pharmacists in Illinois were fired from their jobs for refusing on religious grounds to comply with state rules requiring them to distribute the morning-after pill. They filed suit in federal district court, citing the Free Exercise Clause, and the judge denied the state’s motion to dismiss, allowing the pharmacists to proceed on their claim that the state rules were motivated by antireligious animus. (On October 9, 2007, the plaintiffs reached a compromise with the state and dropped the suit.)

In Massachusetts, state antidiscrimination laws have been enforced without an exception that would allow Catholic adoption agencies to give children only to heterosexual couples. As a result, the church has concluded that it could not reconcile the practice with its faith and withdrew from providing adoption services altogether.

Further extensions remain possible. Will prosecutors begin to press charges for violations of underage- drinking laws when minors receive Communion in both species at daily liturgies? Antidiscrimination laws might be applied to force churches with all-male clergies to hire female pastors or priests. And evidentiary rules might be enacted that would apply to all persons, without exemptions for priest-penitent communications. While such laws might serve otherwise worthy purposes and be enacted without any intention of restricting religious freedom, they might be read in ways that would severely constrain faith-related practices. Could antidiscrimination laws be invoked to require Jewish, Amish, Muslim, and other religious communities to hire nonbelievers to teach in their schools?

Smith does not offer much hope for exemptions from such state antidiscrimination laws. It would be ironic”though certainly possible”for courts to find a discriminatory purpose behind such laws. But without proof of such purpose, or the aid of another constitutional right, religious claims for relief would fail. As these examples show, persons who care about freedom and faith must keep a watchful eye for animus. They must, however, turn their primary efforts to persuasion so that their fellow citizens and their legislators can share their concerns and reach appropriate ­accommodations.

Unfortunately, another impediment to religious freedom may arise in the context of legislative action: Statutes designed to protect faith-based practices may be deemed unconstitutional. For example, in City of Boerne v. Flores , the Supreme Court struck down a provision of the Religious Freedom Restoration Act, in which Congress had sought to provide greater ­protection for free exercise. The act rejected the limitations on free exercise allowed by the Court’s opinion in Smith and required federal courts to apply the more protective Sherbert test when analyzing religious claims. In City of Boerne , the Court rejected Congress’ attempt to protect religious freedom, ruling that the act exceeded the scope of congressional authority . The Court emphasized that Congress may not enact legislation that expands the rights enumerated in the Constitution or define its own powers by altering the [Constitution’s] meaning.

Thus, the Court’s decision in City of Boerne undercut the assurance it had given in Smith that legislative action could protect free exercise. In Smith , the Court had presented structural arguments emphasizing that legislatures could decide whether to expand religious freedom; in City of Boerne , the Court applied structural arguments to cabin Congress’ competence to do just that. While both decisions may be defended for their fidelity to the separation of powers, their interplay ­suggests a further hurdle for advocates of religious ­freedom.

The troubling interplay of the Court’s free-exercise decisions and its ruling in City of Boerne were noted in a dissent to that decision. There, Justice Souter expressed reluctance to limit Congress’ power to protect religious freedom. He argued that Smith should not be applied to strike down the Religious Freedom Restoration Act without closer analysis of the claims and the historical arguments going to the original understanding of the Free Exercise Clause , which raise very substantial issues about the soundness of the Smith rule. Justice Souter’s concerns did not sway the majority, but his dissent underscored the problems for religious freedom that arise from the intersection of the Court’s decisions.

The future of religious freedom may now shift to the hands of voters and lawmakers. Although the courts can continue to protect religious ­practices against laws motivated by discriminatory ­purposes, or can grant relief when Free Exercise claims are made in conjunction with other constitutional protections, most protective action must be ­legislative.

Believers must learn to attract the support of legislators”a task that may well become more difficult as secularism grows in the voting population. But at least the responsibility of pursuing religious liberty rests with those most committed to its preservation. If they raise their voices, I have no doubt that they will be heard and will eventually prevail in what is, deep down, a tolerant and respectful society, such that their faiths and freedoms will be protected in a nation built on those values.

Despite trends toward secularization, most Americans continue to profess religious faith, which, I suggest, enables them to understand the importance of faith-based practices and the value of accommodation. As American society and law remain grounded in moral norms and faith-based traditions, those asserting claims grounded in religious freedom may strike sympathetic chords. But to strike such chords, they first must speak. Only by the energy and perseverance of their voices can our nation retain in its fullest form the freedom for which it was designed.

Diarmuid F. O’Scannlain is a judge on the United States Court of Appeals for the Ninth Circuit.